Since Gawker.comand
the Toronto Star released stories on
May 16 and 17, 2013, alleging to have witnessed a video of Mayor Rob Ford
smoking an illegal substance, international media have followed the story and
have propelled the Mayor into the international spotlight. Ford’s appearance in
international headlines has in turn become a story in itself here in Canada.

When Toronto Police
announced they had possession of the video, the story was the second most-read
item on the BBC’s global news website.

Our research
discusses how Ford coverage has varied around the world, including in countries
like the United States, the United Kingdom, Australia, France and the Republic
of Ireland, highlighting differences in these countries’ libel law. We will
describe these differences with the aid of legal experts, and offer advice for
journalists from leading investigative reporters from the United Kingdom and
the United States.

Rob Ford around the world

In order to
investigate the types of international coverage on Rob Ford, we looked at the
accuracy and language used in online articles and broadcasts published about
Ford from May 2013, to Nov. 8, 2013, in the United States, the United Kingdom,
Australia, and France.

Overall, there has
been a large variety in the scope, tone and depth of this coverage. But some of
this coverage contained errors, raising questions about concern for
international libel law and the repercussions for these publications if Ford
had pursued action. We selected particular publications in each country to
reflect a variety of media and types of viewership. Here is a look at the
coverage by those publications in each country:

The United States:

American coverage of
Rob Ford, while frequent, has been mostly satirical, comedic and opinion-based.
Out of the sources we assessed, national daily paper USA Today had the most frequent coverage of Rob Ford, publishing 28
stories related to Ford between May 2013, and Nov.8, 2013. Their reports were
mainly from the Associated Press or frequently cited Canadian publications,
such as the TorontoStar, and have been a mix of serious
reports and comedic commentary on the saga.

The New York Times’ coverage of the Rob
Ford scandal began before it was a scandal. It was Ian Austen who wrote the
first article regarding the mayor on May 7, 2013, “Mayor Feud with Press Escalating in Toronto.” The coverage then
began to focus on recent developments of the scandal, for a total of 15
articles, op-eds and blogs up until Nov.8. While the newspaper did include
coverage of the mayor in their ‘International’ section, their primary focus was
on opinion columns written by Jennifer Preston and blogs by Robert Mackay.

Gawker’s coverage has been
purely satirical since publishing that they had viewed the video of the mayor
allegedly smoking crack cocaine. This is evident in headlines such as “The Assassination of Canada by the Coward Rob Ford,” saying that, “Rob
Ford should be kicked out of Canada, right into that immense freezing lake that
has for so long kept the vulgar Americans out of the nice part of North America.”

Vanity Fair magazine has
published five small stories on their website in relation to Rob Ford since May
of last year, starting on May 17, 2013. Their coverage has been mainly comedic
and sarcastic, and frequently cites USA
Today’s coverage. In an online article from Oct.31, the lede of the post calls
the video of Ford “the most anticipated film of the year.” The magazine even
created a ringtone out of the audio from the video of Rob
Ford threatening to murder someone.

The United Kingdom:

The BBC is Britain’s
national public broadcaster and most-watched news channel, headquartered in
London. Their coverage of Ford has been multi-platform, including online, radio
and TV broadcast, and they produced 26 stories related to Ford between May 2013
and Nov.8, 2013, with the first article appearing on May 17, the same day the Toronto Star printed their story about
viewing the video allegedly showing Mayor Ford smoking crack cocaine.

BBC’s coverage of
Ford has been consistent, original and up-to-date as news has broken. Headlines
are accurate and clips from Ford’s press conferences are often included as a
video addition to the written articles. BBC Washington correspondent Rajini
Vaidyanathan was even sent to Toronto to cover the story. In her BBC World broadcast piece from Nov.7,
Vaidyanathan emphasized the international-scope of the story, saying that,
“Canadian politics rarely registers internationally, but Toronto Mayor Rob
Ford’s admission that he smoked crack cocaine changed all that.”

Like the BBC, the Guardian, a British national daily
newspaper, also produced 26 stories on Ford between May 2013 and Nov.8, 2013,
however, their coverage was a mix of Associated Press copy, stories by Toronto-based
and U.S.-based reporters, as well as some satirical columns. While coverage was
frequent and up-to-date, the inclusion of comedic and opinion-oriented articles created
a markedly different tone to the narrative displayed by BBC, and included
comparisons to U.K. politicians, like London Mayor Boris Johnson. But whereas
BBC coverage was by BBC reporters, the Guardian
included opinion pieces by Canadians, like Toronto Star columnist Heather Mallick and
Toronto Star reporter Robyn Doolittle, who explained the scandal and the
effect on Torontonians in their own words.

While coverage by BBC
and the Guardian was accurate and
frequent, the Scottish daily paper The
Scotsman erred in a headline published on Nov.2, which said, ,“Toronto
mayor crack-smoking video in police hands”, when it was not yet proven that Ford
was taking cocaine in the video. (Across the Irish Sea in Cork, an Irish Examiner story on Nov.1, 2013 had
similarly stated: “Toronto Police receive video of Mayor taking cocaine.”.)

Australia:

Australian coverage
of the Rob Ford scandal began on May 18, 2013 with an article published on
News.com.au. The majority of articles published during this time were courtesy
of the Associated Press, although the few original articles in News.com.au and
the Sydney Morning Herald included a
significant amount of context about the mayor and the history of his behaviour.
Some headlines were problematic, such as a headline by Fairfax Media on May 28,
2013: “‘Crack-smoking Toronto mayor’ urged to speak.” Although the
allegation is in quotation marks, that would be no defence given the absence of
clear evidence that Ford was smoking crack.

France:

Coverage in France
has been limited to breaking news. This is demonstrated in Herald De Paris, where coverage was frequent, but consisted only of
wire copy. The website published stories in French and English, but the ones
pertaining to Ford only appeared in English. In the world’s leading French
newspaper, Le Monde, coverage of Rob
Ford was ignored until the mayor’s admission to smoking crack cocaine on Nov.
6, 2013. 20 Minutes France had five
articles written by their reporters, relying heavily on Agence France-Presse
wires. La Nouvelle République published
their only article relating to Rob Ford on Nov. 11, which was a news-hit about
the most recent video purchased by the Star.

Libel law around the world

In Commonwealth
countries including Canada, the United Kingdom and Australia, the onus is on a
libel defendant to prove that a reputation-harming statement is either true or
otherwise defensible. According to media lawyer Brian Rogers, in order to
initiate a claim, the plaintiff must prove only that the statement was made to
a third party, that the statement was made specifically about the individual,
corporation or organization in question, and that the statement has disparaged
the reputation of the individual, corporation or organization.

While these
allegations may be difficult to contradict, the media can rely on a variety of
defences. These defences include truth, fair comment (statements of opinion on
matters of public interest), qualified privilege (a defence protecting some
reports on public proceedings), and various versions of a special media defence
for responsible journalism or, as it is known in Canada, responsible
communication on a matter of public interest. In the latter type of defence,
defendants need to satisfy the court that they conducted their reporting with a
concern for accuracy and fairness.

Up until recently,
Canada and the United Kingdom have been running on parallel paths under their
shared legacy of common law, but the United Kingdom has now passed a new Defamation Act, effective 2014, that will bar any
defamation claim that does not involve “serious harm.” In the case of a
company, that means serious financial harm attributable to the libel.

“That’s a high
barrier and will, I think, be a means to cut-off a lot of litigation early by
defendants objecting to the claim as being just too insignificant to merit a
suit,” said Toronto media lawyer Brian Rogers, who has represented newspapers,
magazines, broadcasters and writers.

The Defamation Act
2013 greatly extends and strengthens what already exists in common law, but
only in clear cases would it be possible to have the case dismissed for
insignificance. This new act has put into statutory form what is still often
known as the Reynolds defence under British common law, although the
Reynolds case was subsumed by a later high court ruling, Jameel v. Wall Street
Journal.

David Leigh, former investigations
executive editor at the Guardian
and author of Wikileaks: Inside Julian
Assange’s War on Secrecy, said he has been relying on the Reynolds defence
in his work for several years.

“What the Reynolds
defence does is commits British publishers to publish material without having
to prove its truth to legal standards provided they engage in responsible
journalism,” said Leigh.

Australia has also
gone through some important changes through statute, such as introducing a
number of important restrictions on the use of libel litigation. Australia
prohibits businesses with more than 10 employees from suing for libel; however,
executives, or people involved in the company, are still able to sue
individually. Australia, like Canada, is a federal jurisdiction, and had to
introduce defamation legislation at the federal level that could then could be
adopted and applied at the state level.

Similarly to
Commonwealth countries, U.S. law stems from English common law. However, this
changed in the early 1960s when the Supreme Court constitutionalized libel law,
applying the First Amendment’s protection of free debate and discussion. As a
result, plaintiffs had to show that the alleged defamation was false--shifting
the onus of proof from the defendant.

The U.S. court case
theNew York Times Co. v.
Sullivansignificantly altered libel and defamation law concerning
public figures. Plaintiffs who are public figures are only required to prove
that the defendants acted with actual malice, meaning that the defendant either
knew it was not true and published it anyway, or they were reckless with regard
to its truth or falsity.

Britain’s Leigh says
he has faced differences in libel law when reporting on public figures when
working with the International Consortium of Investigative Journalists in the
United States for a story revealing the owners of offshore accounts. Leigh was
required to operate under British legal advice, while his U.S. counterparts
were given different advice.

“Our legal advice was
you have to trace these people and put it to them so that you’ve got a Reynolds
defence, but lawyers in the U.S. had a different set of parameters,” said
Leigh.

“The lawyers told
Gerard Ryle [Director of the ICIJ], he didn’t have to worry about libel in the
same way as in Britain, but to get the protection of free speech laws he needed
to concentrate on publishing details about public figures and if they weren’t
public figures his lawyer said he’d have a big problem.”

Listen to Leigh describe how libel laws affect his
reporting, locally and internationally:

In France and Quebec,
torts such as libel do not rely on the (judge-made) common law but on
legislation within the French civil code, which traces its origins back to the
Napoleonic Code established in 1804.

While freedom of
expression is generally protected in France, strict defamation and privacy laws
make it easy to sue for defamation. Losing a libel case against a public
official carries a high fine of €45,000, as opposed to libel against a private
individual, which carries a fine of €12,000, chilling public interest criticism
of politicians and government officials.

In 1994, the Court of
Appeal of Quebec held that defamation in Quebec must be governed by a
reasonableness standard and not strict liability. It is therefore required that
the plaintiff show that there was a fault committed by the defendant (a wrongful
act or existence of an injury).

In the case of
professional journalists, therefore, the plaintiff must show that the
journalist failed to meet professional standards of conduct.

“Public interest can
be factor, but it’s not sufficient. Truth can be factor, but it’s not
sufficient,” said Rogers.

“It’s about the
relationship between the pursuing party and the defendants and the nature of
the publication involved.”

The case of the Irish libel

In
our research of international Rob Ford coverage, we came across headlines
making then-unproven statements, such as, “Toronto Police receive video of Mayor taking cocaine,” published online by
the Republic of Ireland’s Irish Examiner
on Nov.1, 2013. It has still not been confirmed that Ford was smoking
crack-cocaine in the video, although he admitted on Nov. 5 that he had in fact
smoked the substance at some time in the past year or so.

According to Rogers
and U.S. lawyer Charles Glasser, former Global
Media Counsel for Bloomberg News, Ford could have succeeded in a legal
action against the Examiner prior to
his November confession.

But where would he
have launched such a suit? That depends. Any person can sue in the jurisdiction
where the alleged tort took place or where the defendant is, explained Rogers.
The Internet has complicated matters, since publication can occur all over the
world. But in most cases, the defendant only has to establish the basic
requirements of the defamation law in the country where it was published.

“Ford might have sued
in Canada or might have sued in Ireland. You can sue where the harm is, and
Ford could argue, well…the Irish Examiner
has readers in Canada, sometimes that’s very hard to prove,” said Glasser.

Not in this case. A
quick Internet search revealed that the Irish
Examiner’s story was published on Breakingnews.ie,
a breaking news site owned by Landmark Digital, an Irish media company that
runs both sites. On Nov.1, 2013, the story was posted with the same defamatory headline on the Vancouver Star’s website, an online
Vancouver news site, with attribution to Breakingnews.ie--creating
a direct connection to Canadian readers and potentially strengthening Ford’s
case. Republication is also not a defence in Canada, making the Vancouver Star liable for the content on
their site.

The ease of
publishing stories that can reach an international audience has opened up the
opportunity for plaintiffs to engage in something known as ‘libel tourism,’
which is when plaintiffs choose to pursue libel suits in countries based on
their defamation laws. England and Wales have been known as the libel tourism
hotspots of the world because the common-law strict-liability tort can be more
rigorous than U.S. and Civil Code suits.

America’s so-called SPEECH Act is designed to discourage suits in
foreign courts by requiring First Amendment principles to be applied before
enforcing a foreign court’s libel judgment. And the United Kingdom’s new
Defamation Act will make it harder for foreign plaintiffs to pursue action
because of a new “serious harm” test, making Canada and Australia likely new
targets for libel tourism. Meanwhile, Ireland, another common law jurisdiction,
is one of the most plaintiff-friendly libel jurisdictions in the world, according
to Rogers.

Although Ford’s admission on Nov.5, 2013, to smoking
crack-cocaine complicates and weakens his case as a plaintiff in either Ireland
or Canada, it does not make it impossible.

Many “bold
plaintiffs” have successfully sued over true allegations, even though truth is
an absolute defence in common law, according to Rogers. Since the onus is on
the defendant to prove that the statement is true in common law, and proving
admissible evidence in court is often difficult and very expensive, plaintiffs
sometimes sue hoping the defendant will issue an apology to avoid the expense
of litigation.

In theory, though,
the truth of an allegation is an absolute defence under the common law, whether
or not the defendant knew the truth at the time of publication. But in France,
the later revelation of truth is not a defence.

“So in this [Irish]
example, had it been a French website, [Ford] could’ve killed them,” said
Glasser.

“Even if he
confessed, later, if they did not have the confession at the time of the
publication, the French newspaper or French website could not introduce his
confession as evidence of truth.”

What journalists’ should understand
about international libel

Being aware of international
libel law and practising good journalism are the key ingredients for avoiding
international, and local, defamation lawsuits, according to the experts we
interviewed.

“Look: get it right,”
said Glasser. “Be fair. Be clear. Be precise. Don’t be in a rush to get it
wrong…

It doesn’t matter
whether you’re in Germany, France, Switzerland or Swaziland, if it’s true, if
it’s fairly written, if it’s in the public interest, you’ll be fine and you’ll
take your chances in any fair court.”

That said, Canada’s
Rogers recommends seeking advice from locals who understand the libel law in
the originating country of the person or story you are covering.

“You have got to be
aware that they could apply the law in their country and sue you in their
country under that law,” he said.

While awareness of
the law is important, Richard Tofel, president ofPro Publica and former assistant
publisher of The Wall Street Journal,
advised journalists to seek professional legal advice.

“Nothing good happens
when journalists try to pre-censor themselves and try to play amateur lawyer
getting ahead of the law,” said Tofel. “So I don’t encourage people here or
anywhere else to do that.”

But David Leigh,
former investigations executive editor at the Guardian, says international libel will become a growing concern.
“With publishing online, everything is available internationally, maybe it’s
going to become a problem in the future, I don’t know,” said Leigh.

“You’ve got to be
aware of the different libel laws in different jurisdictions because if you are
going to publish in different jurisdictions then you’ve got to be aware that
the laws are different.”

So far, Rob Ford has
sued no one, whether in his own country or abroad. Whether or not he decides to
do so in the future, one thing is for sure: the world will be watching.